October 28, 2008

[That the new President will appoint many federal judges, including, probably, at least one Supreme Court Justice] ought to raise serious concern because of Mr. Obama's extreme left-wing views about the role of judges. He believes -- and he is quite open about this -- that judges ought to decide cases in light of the empathy they ought to feel for the little guy in any lawsuit.

Speaking in July 2007 at a conference of Planned Parenthood, he said: "[W]e need somebody who's got the heart, the empathy, to recognize what it's like to be a young teenage mom. The empathy to understand what it's like to be poor, or African-American, or gay, or disabled, or old. And that's the criteria by which I'm going to be selecting my judges."

Look closely at Obama's words. He is not saying that judges should distort the meaning of law so that people they empathize with can win cases. He's saying judges need to understand the realities of the world, most significantly, what life is like for people. That requires a quality of mind expressed by the word "empathy."

Law is not a verbal and logical abstraction. Statutes and constitutional provisions are written and voted on by people who have an understanding of the world and who mean something by what they write. Judges must try to understand all that. And law is applied to a set of facts -- it's actually unconstitutional for federal judges to decide cases that are not fact-based disputes -- and judges need to understand what those facts are. Judges therefore need the capacity to comprehend what it's like to be poor, or African-American, or gay, or disabled, or old. That is the empathy Obama cares about.

Now, judges also need the capacity to understand how business and economics work, to understand science and technology, and to fathom all sorts of other real-world facts that are implicated in legal cases. That Obama stresses one kind of understanding -- how oppressed, suffering, and unfortunate people feel -- does say something important. But it does not say that squishy feelings should replace legal analysis.

Back to Calabresi:

On [Obama's] view, plaintiffs should usually win against defendants in civil cases; criminals in cases against the police; consumers, employees and stockholders in suits brought against corporations; and citizens in suits brought against the government. Empathy, not justice, ought to be the mission of the federal courts, and the redistribution of wealth should be their mantra.

As I've already explained, Obama did not say this. It may be that in close enough cases, a judge with a very specialized kind of understanding -- vividly picturing the suffering of the individual but numb to the realities of science and economics -- would tip toward personal injury plaintiffs, criminal defendants, employees, consumers, and so forth, far more than good legal analysis calls for.

But even if Obama were to inflict such lop-sided legal minds on us, if they were any good at all -- and I think he'd at least pick very high quality bleeding hearts -- it's still a big stretch to say they would usually decide cases in favor of the little guy. In fact, Obama is likely to pick extremely highly qualified persons who understand the broad range of factual realities implicated in cases, but who also have the quality of empathy that he prizes.

Now, Calabresi addresses that 2001 radio interview that we were taking about yesterday. He writes, correctly, that Obama said "that the U.S. Constitution as written is only a guarantee of negative liberties from government -- and not an entitlement to a right to welfare or economic justice." Note that Calabresi does not, like some others, assert that Obama said that the Supreme Court ought to have found affirmative entitlements in the Constitution. Calabresi nevertheless has a problem and even wonders "whether Mr. Obama can in good faith take the presidential oath to 'preserve, protect, and defend the Constitution.'"

Does Mr. Obama support the Constitution as it is written, or does he support amendments to guarantee welfare?

What? You can't take the oath to "preserve, protect, and defend the Constitution" if you support amendments? Well, then, strike any candidate who supports the Federal Marriage Amendment! The outrage of thinking that Article V of the Constitution can be used! I guess all the Founding Fathers who wanted a Bill of Rights were a bunch of traitors to the original document. How could Lincoln in good faith have taken the presidential oath if he wanted to see slavery abolished? I could go on. You get the point.

If Mr. Obama wins we could possibly see any or all of the following: a federal constitutional right to welfare; a federal constitutional mandate of affirmative action wherever there are racial disparities, without regard to proof of discriminatory intent; a right for government-financed abortions through the third trimester of pregnancy; the abolition of capital punishment and the mass freeing of criminal defendants; ruinous shareholder suits against corporate officers and directors; and approval of huge punitive damage awards, like those imposed against tobacco companies, against many legitimate businesses such as those selling fattening food.

Obama has never proposed such things, and the idea is inflammatory and, frankly, silly. Do you realize how hard it is to pass a constitutional amendment? You've got to win in the legislatures of three-quarters of the states. How is there the slightest chance that could happen with the amendment Calabresi posits? Calabresi is trying to scare us.

I don't doubt that Obama will appoint liberal judges and that the Senate will approve them. But there is a limit to what judges can do, and if Obama appoints anything like the hemorrhaging hearts Calabresi envisions -- or pretends to envision to get you going -- there will be a mighty backlash. The Warren Court -- as Obama explained -- did not go all that far, yet its supposed excesses have been used for decades to argue for the appointment of conservative judges. Obama would be a fool to appoint extreme, left-wing judges, and I don't think he is a fool. But if he is, the GOP should take over Congress in 2010 and win the presidency easily in 2012.

IN THE COMMENTS: Simon says:

I think you misread Calabresi. In context, his parade of horribles seems to refer to what his judges will do rather than Constitutional amendments.

Calabresi talks about amending the Constitution and then shifts to that parade of horribles, but I agree -- you are right -- that he means to say that the judges may find these things in the existing constitution.

Or not find. When he worries about "the approval of huge punitive damage awards," he's upset that the courts might fail to find a constitutional right against them. Presumably, Calabresi would like to see more judges who have empathy for the difficulties of running a business.

AND: Simon reminds me by email that I posted about Obama's remarks to Planned Parenthood back on the day he made them. I said:

“But the issues that come before the court are not sports; they’re life and death. We need somebody who’s got the empathy to recognize what it’s like to be a young teenage mom.”

Obama said that 95 percent of cases can be judged on intellect, but that the other 5 percent are the most important ones.

“In those 5 percent of cases, you’ve got to look at what is in the justice’s heart, what’s their broader vision of what America should be."

Hmmm.... you’ve got to look at what is in the justice’s heart. Great way to distinguish yourself from Bush!

I've known Harriet for more than a decade. I know her heart, I know her character. I know that Harriet's mother is proud of her today, and I know her father would be proud of her, too. I'm confident that Harriet Miers will add to the wisdom and character of our judiciary when she is confirmed as the 110th Justice of the Supreme Court.

But we know what this "heart" business means! It means that the President (or would-be President) understands that judging won't be neutral, that the human being doing the judging, no matter how dutiful and honest he tries to be, can only find his way to a decision in a complex case by responding to the pull of emotion. So "heart" matters. The question isn't whether "heart" counts. It's: which "heart" do you want?

Which was Obama's point in the radio interview under discussion yesterday. But I'm not so sure; judges can do an awful lot, and have. And as to some "almighty backlash," the Warren Court engendered a backlash, but how many of its mistakes have been overruled? The only one that springs to mind is Fay. The backlash from the Warren Court only went so far as slowing the drift, not even stopping, still less changing course.

"Obama has never proposed such things, and the idea is inflammatory and, frankly, silly. Do you realize how hard it is to pass a constitutional amendment"

I think you misread Calabresi. In context, his parade of horribles seems to refer to what his judges will do rather than Constitutional amendments.

"Obama would be a fool to appoint extreme, left-wing judges, and I don't think he is a fool."

Depends what you mean by "extreme." In your assesment, would Cass Sunstein be an extreme left-wing judge?

If Mr. Obama wins we could possibly see any or all of the following:..[lots of terrible stuff]...

Obama has never proposed such things, and the idea is inflammatory and, frankly, silly. Do you realize how hard it is to pass a constitutional amendment?

Obama don't need no stinkin' amendments. All those things are already in the Constitution--most are in the Commerce Clause, and the rest are lurking in penumbras here and there. Obama just needs to appoint judges with the vision to see them.

"Judges must try to understand all that. And law is applied to a set of facts -- it's actually unconstitutional for federal judges to decide cases that are not fact-based disputes -- and judges need to understand what those facts are. Judges therefore need the capacity to comprehend what it's like to be poor, or African-American, or gay, or disabled, or old. That is the empathy Obama cares about"

Empathy is a subjective feeling, not a fact. Antipathy is also a subjective feeling and not a fact. Such subjective feelings are the realm of the lawmaker, not the judiciary.

Why do we, one week before the election, have to interpret what we think Obama would do with regard to the judiciary from ramblings on a 2001 interview? Why hasn't that candidate been made to articulate his philosophy so that we may evaluate it without having to apply inference?

"It may be that in close enough cases, a judge with a very specialized kind of understanding -- vividly picturing the suffering of the individual but numb to the realities of science and economics -- would tip toward personal injury plaintiffs, criminal defendants, employees, consumers, and so forth far more than good legal analysis calls for."

As a result, we will see an accelerating flight of capital, brainpower, and entrepreneurial vigor out of the United States to China and other countries, retarding recovery.

I want judges who have neither "vivid" imaginations or "numb" souls but ones who are dispassionate in their reasoning.

I don't agree that the GOP would take back Congress or the White House in the next cycle. Charismatic leaders do not go away so easily.

Why mock him, Ann? Jurisprudence over 2 years, maybe 4, is nothing to sniff at. A crappy liberal headed Supreme Court could make some crappy decisions which you would all be stuck with - like finding some further rights to privacy a la Roe reasoning, or some eminent domain rights against, I dunno, maybe oil companies to force wind farms to be built or some such nonsense. Bad case law is very difficult to get over and I am a bit surprised at your being so glib about it.

"Look closely at Obama's words. He is not saying that judges should distort the meaning of law so that people they empathize with can win cases. He's saying judges need to understand the realities of the world, most significantly, what life is like for people. That requires a quality of mind expressed by the word 'empathy.'"

Although Calabresi clips the quote - he has a word limit - we should indeed look closely at Obama's words. Although I can't find an unedited transcript of the PP speech, I think we can assume that in this regard, it tracked his similarly-worded speech opposing John Roberts' confirmation, which can be found at 151 Cong. Rec. S10366 (Sept. 22, 2005) and some of which I excerpted here. What Obama was saying was that in "hard cases" where the text is not directly on point or perfectly clear, "the critical ingredient is supplied by what is in the judge's heart."

But what does he mean by a hard case? Well, one of the examples he gives of a "hard case" is the question of "[w]hether the commerce clause empowers Congress to speak on those issues of broad national concern that may be only tangentially related to what is easily defined as interstate commerce." Ann, he thinks Lopez was a close case! Even Jeff Rosen admits that if any law was ever passed that transgressed the limits of the commerce power, that was it. Doesn't it seem quite obvious that what Obama means by a "hard case" is really a case where the text doesn't yield the answer you want it to?

Ain't got no place to lay your headSomebody came and took your bedDon't worry, be happyThe land lord say your rent is lateHe may have to litigateDon't worry, be happyLood at me I am happyDon't worry, be happyHere I give you my phone numberWhen you worry call meI make you happyDon't worry, be happyAin't got no cash, ain't got no styleAin't got not girl to make you smileBut don't worry be happyCause when you worryYour face will frownAnd that will bring everybody downSo don't worry, be happy (now).....(Don't worry, Be Happy Bobby McFerrin)

In fact, Obama is likely to pick extremely highly qualified persons who understand the broad range of factual realities implicated in cases, but who also have the quality of empathy that he prizes.

I'm looking at the friends and associates that Obama has chosen throughout his career, and I'm wondering how you can flatly state that Obama is going to nominate or appoint judges of such high caliber. All we have to go on is how he has chosen people in the past. That record is very slim, but he has no problem associating with people of questionable ideology (Rev. Wright) and morals (Ayers, Khalidi, Rezko).

You have a lot of faith in Obama's ability to do the right thing, when he has never, in fact, shown any capacity for doing it. Why you hold to that faith is a mystery to me.

"and approval of huge punitive damage awards, like those imposed against tobacco companies, against many legitimate businesses such as those selling fattening food."

Just look at Nanny Bloomberg and the banning of trans-fats as the first step in regulating how you eat and how you live your life. It's coming and you should be ready for it. They know better than you how you should live your life. Don't worry, be happy.

I think that you can argue that lawmakers can have empathy, but not judges. Judges are to enforce the laws, not legislate. Obama is in favor of federal funding for abortions, and has said he will sign the Freedom of Choice Act, which would remove any and all restrictions on abortions. And, Cass Sunstein has written the book about FDR's New Bill of Rights, such as the right to a job, a wage, a home, health care, among other things. He regards the Constitution as an impediment to his agenda. He is a close friend and advisor to Obama. And I agree that Obama's choice of friends and associates in the past does not inspire confidence in is judgement.

"You can't take the oath to "preserve, protect, and defend the Constitution" if you support amendments? "

Of course you can - but if a candidate for President is already in favor of amending the Constitution, then he bloody well better tell us what those amendments are? Of course, Obama is just a cipher who votes present and doesn't even knom that he's not on the Senate Banking Committee, so I guess it's ok for him to keep his agenda in his pocket until the time is right - like say Nov 6th? I cannot fathom otherwise smart moderates like Althouse and supposedly smart conservatives like Buckley (Adelman's not too smart and Powell was as Republican but never a conservative) who have this evidence-free hope that Obama will change into some kind of a moderate after he is elected.

Oh be serious Professor. Did you watch the Alito and Roberts confirmation hearings? Question after question by Democratic Senators based on the RESULT of the case in question with an astounding indifference to the underlying law or facts. They want judges who think the same way and they will be in a position to get them (and, by the way, Obama voted against Roberts as I recall for the most flimsy, partisan reasons). Calabresi is spot-on here.

This post is just another example of Ann's recent foray into deductive reasoning. She abandoned her cruel neutrality the moment she made an emotional connection to Obama (which happened the night she severed her emotional connection to McCain).

Eisenstat v. Baird and Griswold v. Connecticut, as two examples, were not "supposed" excesses of the Warren court. You may agree with those results, but they have no basis in the text of the Constitution. None. Nada. Zippo. Zilch. Those are the kinds of fully fabricated decisions that are in fact "excesses." We can argue about Terry, Miranda, Gideon, etc., but at least those and simliar cases had textual basis in the text of the 4th 5th and 6th amendments.

However inelegantly Prof. Calabresi made his point, the fear is that President Obama's appointments to the bench will be inclined to just make stuff up out of empathy for those litigants who are, in the words of UH Law Center Prof. Tony Chase, "below the power line." Worse, court discretion may be exercised in an abisiive manner for such litigants.

Yes, law is based on findings of fact, but the legal conclusions drawn from the facts can be and often have been highly subjective, and discretion can be exercised in favor of certain kinds of litigants even when real justice demands otherwise. That, I think is what Calabresi means. Are we to expect more of Judge Baer's "empathetic" fact finding that people in certain neighborhoods are justified in running from the police in the middle of the night so as to void probable cause to search a vehicle?

That's one that went too far, and this nation is still torn by it today. It was wrongly decided. Just ask Laurence Tribe of Harvard Law, one liberal among many who support abortion but agree it was wrongly decided. Even Ruth Bader Ginsburg has expressed doubts.

But the Supreme Court is years away from the real effects that everyday people suffer when stupid judges on the lower courts rule wrongly. Undoing idiocy is 100 times harder than waiting to replace a President whom voters on faith, without any evidence state and I don't think he is a fool

Obama is going to appoint activist judges who will in fact legislate from the bench.

Look for hundreds of thousands of jobs to be destroyed or moved offshore by runaway law suits. There is a reason tort lawyers are pouring money into the Obama campaign. You think there a lot of ambulance chaser ads on late night TV now? Wait until next year!

Obama's judges will ensure not only that there are no limits on abortion, but that the constitution provides an unlimited right to free abortions, and the definition of what is an 'abortion' will be extended to explicitly include post-delivery infanticide.

On what possible evidence do you believe, Ann, that Obama will not populate at least the lower courts - the ones everyday Americans are affected by immediately - with left-wing, "we don't need no stinking Constitution?" judges?

Faith, Ann? Just Hope and Faith that what you want Obama to do, he might do?

Should Obama win I would love to see Hillary put on the court. I completely trust her judgment on all judicial questions. And the right-wing will not be able to do one single thing to her, she will be there for life. No matter how many shitfits the nutjobs throw. Excellent.

I listened to the excerpt and plan to listen to the full interview later this week. I think Ann's interpretation is strained. Clearly Obama believes in redistribution, as he admitted to Joe the Plumber; he just isn't sure what is the best way to accomplish it.

The strenuous reaction of the Obama campaign to the audio is a clue to how damaging they think it is. I suspect that Ann and others like Cass Sunstein are having a "no big deal" reaction because they agree with Obama.

integrity said... "Should Obama win I would love to see Hillary put on the court."

Whenever I hear people talking about putting politicians - even politicians with a JD - on the court, I have to suppose that that person really has no idea what the court really spends its time doing. Do you really think that Hillary wants to spend the rest of her life wading through cases about ERISA, the Federal Arbitration Act, the APA, the tax code, antitrust, and all the other myriad areas of law on which the court spends 99% of its time and which is only of the remotest interest to law nerds like me? Honestly I think that even some law professors would be bored to tears on that court, let alone a politician.

Why do we, one week before the election, have to interpret what we think Obama would do with regard to the judiciary from ramblings on a 2001 interview? Why hasn't that candidate been made to articulate his philosophy so that we may evaluate it without having to apply inference?

"'The Warren Court -- as Obama explained -- did not go all that far' Uh, have you even heard of the Warren Court decision in 'Roe v Wade'?"

No, I haven't. What happened in that case?

I have heard of the Warren Court decision in Griswold v. Connecticut. (I even teach it in my law school class.) That decision followed a brilliant dissent in an earlier case that was written by one of the very best conservative jurists who have ever served on the Court, Justice Harlan.

Do you think there is no right of privacy in the Constitution? If you do, you are not in agreement with Chief Justice Roberts and Justice Alito, both of whom affirmed the existence of that right in their confirmation hearings.

Prof. Calabresi's editorial is intellectually dishonest and knowingly alarmist. One commentator stated that we should look at the kind of people Obama has associated with and likely to put on the court. Does he mean Judge Wood? Chicago Professors Douglas Baird and David Strauss? There is no way that any reasonable person, including Prof. Calabresi, could possibly think that judges of this ilk would always benefit a plaintiff over the defendant or the criminal over the police, or that they would disregard the rule of law. Obama is a thinking constitutional scholar--he is no radical, and he is likely to put esteemed liberal judges and justices on the courts.

It is hard to address everything that is wrong with this editorial. 4 judges on the DC circuit is actually not a little (Reagan's 8 was unusually high), and why is it that many republican appointees are likely to take senior status after the election? Why did they not do it a year ago? I think some republican (Bush I, Reagan) appointees did not want to be replaced by W.'s appointees. Furthermore, how is the 7th circuit (with 10 active judges, 3 democratic appointees, and one vacancy) about to be taken over by liberals? Counting the senior judges the court has more republican appointees. Even if one more republican takes senior status, 5 of 11 would be democratic appointees.

The legal and political spectrum have moved to the right, and it is unlikely that Obama will consistently choose judges as far left as, say, Brennan. And even if he did choose more old-school left-leaning judges, Calabresi's fears would be completely unfounded.

Simon said... integrity said... "Should Obama win I would love to see Hillary put on the court."

Whenever I hear people talking about putting politicians - even politicians with a JD - on the court, I have to suppose that that person really has no idea what the court really spends its time doing. Do you really think that Hillary wants to spend the rest of her life wading through cases about ERISA, the Federal Arbitration Act, the APA, the tax code, antitrust, and all the other myriad areas of law on which the court spends 99% of its time and which is only of the remotest interest to law nerds like me? Honestly I think that even some law professors would be bored to tears on that court, let alone a politician.

She is and always will be a policy wonk. Hillary would love it, and would provide us(libs) with a champion for our causes. Much like the right-wingers you love like Scalia and Thomas are champions for your causes. She'd give them a run for their money and may even convert them to proper thinking on a whole host of issues. Hillary in an unelected, virtually unimpeachable position on the court would be kick-ass.

From The Corner:"The Second Bill of Rights [Mark Steyn]Re Sunstein, Obama and Euro-style rights, they may be here sooner than you think:

U.S. Rep. Marcy Kaptur (D. Toledo) whipped the crowd up before Mr. Obama took the stage yesterday telling them that America needed a Second Bill of Rights guaranteeing all Americans a job, health care, homes, an education, and a fair playing field for business and farmers."

The Democrats have presented to the general electorate the most extreme Left candidate they've ever dared then vigorously defended that choice against any criticism whatsoever with energetic charges of racism. This candidate is a purposeful cipher.

Here we pay close attention to what the candidate spoke before a conference of Planned Parenthood, as euphemistically a named group as linguistically possible, itself the unintended consequence of an activist judiciary. What was meant to compassionately protect women from unwanted pregnancies has grown beyond anyone's wildest nightmare into a full-blown federally sanctioned abortion industry, a careless murderous form of birth control affecting chiefly minorities, where real life horror stories abound where criminal activity becomes protected and where "compassion" for an unprepared mother is extended at the expense of those unborn, those yet to be born, those nearly born, those partially born. That's all within the points being made in this post.

But we're required to pay close attention to precisely what this candidate says here in order to decipher the code, for he is pure code. Beautiful, eloquent code, apparently to those who find it possible to listen to him. And what is said here doesn't match what is said there, and what is said now doesn't match what was said then. Examples abound, even though the candidate's career is too short to claim any degree of meaningful experience. Such is the present state of national politics, that unknown entities are elevated to high office not fully vetted in spite of protracted billion dollar campaigns.

In order to propel this candidate the Democrats have allowed a degree of misconduct unthinkable, unallowable, unacceptable up to this precise point in time. So smitten have the Democrats become generally with this particular candidate they're willing to alter the nature of national political life permanently, to the extent large portions of the opposition actually think they're witnessing the advent of the end of days, the upraising of a foretold antichrist which they've been so enthusiastically reading about in large numbers in the Tim LaHaye and Jerry Jenkins Left Behind series of some sixteen best-selling novels.

The rest of the opposition sees merely the end of their country as they've known it into a more globally acceptable form of socialism. The rest of the rest of the opposition sense real fascist tactics in action right before their despairing eyes.

Yes, Obama will nominate the most liberal judges imaginable. That's what red diaper babies nursed on socialist concepts and advanced affirmatively grow up to do. Even brilliant ones, especially brilliant ones. And those appointees and nominations will pass unopposed by a congress in symphony.

Take it all as hyperbole, take it as hysteria, take it as the pendulum swinging back from an opposite extreme, take it however you wish, if Obama loses and that's still as likely as not, these will be the reasons.

[If I read the phrase GET OVER IT one more time I'll take its author for bereft]

"I have heard of the Warren Court decision in Griswold v. Connecticut. (I even teach it in my law school class.) That decision followed a brilliant dissent in an earlier case that was written by one of the very best conservative jurists who have ever served on the Court, Justice Harlan."

A dissent that was wrong, in my view, as was Griswold. And if we are going to appeal to the caliber of the jurists who took a particular view of those matters, we should note that the latter was decided over the dissent of two of the best jurists of any stripe to serve on the court, Justices Black and Stewart.

I agree with Obama that a handful of constitutional cases each year involve judgment calls.

But it would be more helpful if he gave examples of close cases he thought were rightly and wrongly decided.

Obama came out against the Court's decision in Kennedy v. Louisiana which held that the 8th amendment forbid executing those convicted of child rape.

Apparently, Obama agreed with Scalia, Thomas, Roberts, and Alito that the 8th Amendment doesn't forbid this. I guess they sided with the little girl who was raped?

And who is the little guy in the Grutter case? Is it the lady who was passed over for admission to law school in favor of a black student?

Or is it the black student with plenty of educational opportunities who still couldn't get high enough grades or test scores to gain addmission so that the law school had to use race as a factor instead of just relying on socio-economic disadvantage as a factor?

Rich B said... "OK Ann, I'll bite. Where is the right to privacy located in the words of the Constitution?"

I think that I can tell you what the liberal rejoinder to this point is.

They might say that judicial conservatives such as myself ask us to look at the structure of the Constitution and understand that its discrete provisions form part of a reticulated whole. We see that the Constitution enumerates certain federal powers, leaves other things to the states, and infer that there is such a thing as "federalism"; we see that the Constitution vests certain powers of the federal government in a Congress, others in a President, and still others in the Supreme Court and such additional courts as Congress ordains or establishes, and infer that the constitution contains such a thing as "the seperation of powers." And even though the Constitution never uses those words, it isn't silent about them. Legal conservatives, our liberal critic might reply - not all of us (prof. Graglia, for example), but my kind - argue that these structural provisions are as enforcable and as justiciable as the discrete points.

[I'm going to try to do my best impression of Justice Breyer for this next part.] So why - why - can we not look at the bill of rights the same way? It contains several discrete provisions, but if the discrete structural provisions of the Constitution form part of a reticulated whole, why not read the rights-bearing provisions the same way. The bill of rights protects privacy in this way; it protects privacy in that way; maybe it's trying to tell us something! Maybe it protects privacy, even though it never says privacy, just as it protects federalism even though it never says federalism.

So why, the liberal rejoinder might ask, why Printz but not Roe? Why New York but not Griswold?

Law is not a verbal and logical abstraction. Statutes and constitutional provisions are written and voted on by people who have an understanding of the world and who mean something by what they write

Oh really? Care to point them out to me at the Federal level? Show me the Congresscritter who reads the legislation they're voting on, and aside from Ron Paul, who asks the question, "Is this Constitutional?".

++++++

Pity the poor, diseased politician. Imagine: to spend your days and expend your efforts making rules for others to live by, thinking up ways to run other lives. Actually to strive for the opportunity to do so! What a hideous affliction! - From The Second Book Of KYFHO (F. Paul Wilson, "An Enemy of the State")

I really want to hear an argument from someone who believes that there is a right to privacy in the Constitution. I think privacy is just a waystation for jurists to find what they want. The concept is intentionally vague.

BTW, I am unpersuaded by arguments from authority (hey, it's endorsed by Alito and Roberts, they are both Genuine Conservatives!).

Ann, doesn't this have as much to do with what judges will have to do before they advance in order to advance, as it does about what they will do once they do advance?

Judges therefore need the capacity to comprehend what it's like to be poor, or African-American, or gay, or disabled, or old. That is the empathy Obama cares about.

Unless you are one or more of those groups, what you have is sympathy not "empathy."

And sympathy is different than empathy born of experience or background. People from hardsrcabble backgrounds, for instance, can often be either lenient or strick on crime.

How does a candidate, not of a favored disadvantaged group, seeking to advance demonstrate the requisite sympathy for favored groups except through prior manifestations of bias in favor of those selected groups?

I am guessing that you are referring to the 14th amendment, which was designed to ensure that all former slaves were granted automatic United States citizenship, and that they would have all the rights and privileges as any other citizen.

How can this be justified as a steppingstone to finding a right to abortion (i.e., depriving a fetus of life)? I understand that a fetus is not considered a person, but this seems like a complete inversion of the clearly intended purpose of the amendment.

I think this type of legal creativity eventually makes a written constitution meaningless.

Madisonman - The constitution was originally designed to keep the government's paws out of your life. Not any more.

"Liberty means the Government keeps its damn nose and paws out of my life."

True but now meaningless. In light of Kelo v. New London, and the Obama plan for raising taxes ever higher, the right to privacy is impossible. If your money belongs to the US government, you have no privacy in your finances nor any way to pay for dissent.

Why?Without a meaningful and robust right to property, one cannot have privacy. If even the 'privacy of one's own home' is gone because the USSC says it's not 'your' home but New London's, well, then there is no right to privacy.

Not anymore.Liberty, Ann? Just a word.Thanks again, boomers!The gift that keeps on giving.

"Liberty means the Government keeps its damn nose and paws out of my life."

True but now meaningless. In light of Kelo v. New London, and the Obama plan for raising taxes ever higher, the right to privacy is impossible.

Why?Without a meaningful and robust right to property, one cannot have privacy. If even the 'privacy of one's own home' is gone because the USSC says it's not 'your' home but New London's, well, then there is no right to privacy.

If your money belongs to the US government, you have no privacy in your finances nor any way to pay for dissent.

We simply aren't free anymore.Liberty, Ann? Just a word.Thanks again, boomers!The gift that keeps on giving.

He criticized Chief Justice John Roberts for saying "he saw himself just as an umpire": "But the issues that come before the court are not sports; they’re life and death."

Well Roberts could have said that he saw himself as just a judge, except most people -- Obama among them -- have forgotten that judges are supposed to be impartial arbiters of the rules. So he said "umpire", because most people still understand what umpires are supposed to do.

MadisonMan said... "IANAL, but I agree. Liberty means the Government keeps its damn nose and paws out of my life."

This of course assumes that "liberty" should be read expansively to refer to being free from obligations imposed by statutes, and I just don't read it that way. For one thing, the clause protects against deprival of "life, liberty and property" without due process, and the situation of a general, amorphous and all-inclusive right in that setting, a fortiori in the otherwise very specific Fifth Amendment, just doesn't feel right. In context, to my mind, the text reads as a requirement of due process before a person can be executed, imprisoned, or fined. We could get into close reading of the text, but that would bore people; more interesting is to point out that law is made in context. We have to recognize that the bill of rights didn't come out of nowhere; it was a distillation of centuries of Anglo-American law, which is why, for example, the Fourth Amendment incorporates the knock and announce rules. As the court has told us more than once, "[t]he language of the Constitution, as has been well said, could not be understood without reference to the common law."

And what do we find when we look at that history? It confirms the commonsense reading of the clause that I offered above. I read the due process clause's requirement of due process before execution, jail or forfeiture as restating a protection - whether phrased as "the law of the land" or "due process" - that had echoed through Anglo-American law since Magna Carta itself provided that "No freemen shall be taken or imprisoned or disseised or exiled or in any way destroyed, nor will we go upon him nor send upon him, except by the lawful judgment of his peers or by the law of the land." Coke wrote about it in unmistakable terms in the Institutes, and one cannot read the 1641 Massachusetts Body of Liberties and not conclude that the colonists had brought the concept with them. The same protection appears in several state constitutions in the revolutionary era, including Article VIII of Virginia's Declaration of Rights 1776 ("no man be deprived of his liberty except by the law of the land or the judgement of his peers"), Article VIII of New York's Constitution of 1777 ("no member of this State shall be disfranchised, or deprived of any the rights or privileges secured to the subjects of this State by this constitution, unless by the law of the land") and Article XXI of the Maryland Constitution of 1776 ("no freeman ought to be taken, or imprisoned, or disseized of his freehold, liberties, or privileges, or outlawed, or exiled, or in any manner destroyed, or deprived of his life, liberty, or property, but by the judgment of his peers, or by the law of the land").

Is it really to be believed that so expansive a limit on government - one that is really capacious enough to swallow the Constitution whole since, as Bork has pointed out, almost every law is a deprival of someone's liberty in some sense - would have escaped Justice Story's notice? Yet when he wrote his treatise on the Constitution, he deemed the fifth amendment beneath his attention.

Of course, I should point out that to the extent we're talking about the Fourteenth amendment rather than the Fifth amendment, what matters is what the due process clause was understood to mean in 1868, not 1791. Remember that for originalists, what matters is what the society that ratified a text would have understood it to mean. Thus, in Heller, for example, the question was what the Second Amendment was understood to mean in 1791, but for an originalist who must decide a case involving state laws - and thus, not the Second Amendment but the Second Amendment as incorporated by the Fourteenth Amendment - the question is not what the right to keep and bear arms would have been understood to mean in 1791, but what it was understood to mean after nearly a century of experience in 1868.

Originalists are bound by methodological assumptions to reject the assumption that there must be parity between the restraints placed on the federal government by the direct action of the bill of rights and the restraints placed on the states by the indirect action of the same via the bill of rights.

The upshot is that even if I'm right about the original meaning of the Fifth amendment due process clause, if one could demonstrate that by 1868the understanding of the "liberty" protected by the Fifth Amendment had expanded to approximately the dimensions understood by the court in the 20th century, you'd have a case. But I don't think you'll find any such cases.

mccullough, that's right, although we should note that those who take my view are very much the outliers in this regard. Ann is (of course) absolutely right that the court has followed the trajectory Harlan set out in his Poe dissent. And that does put conservatives - for whom, the corrupting influence of Roe aside, stare decisis ought to be an attractive principle - in an awkward position. Are we really willing to overturn nearly a century's worth of caselaw? Is there some way to make our peace with it as Scalia seemed to attempt in Michael H? Do we simply say "bygones" and stop applying it? (None of this matters if Obama stacks the federal bench, of course, because his judges will believe it in spades.)

Sarah Palin rightly warns us of the danger of accepting gifts from oil service company executives, which reminds me of when Scalia rode with Cheney on Air Force Two to enjoy a little duck shooting on -- oil service company executive -- Wallace Carline's private preserve. Now obviously Scalia is comfortable hobnobbing with the oil service company executives of the world, as Alito is with siding with employers in lawsuits filed by workers. It is past time to get some justices who can relate more to workers than to the corporations who employ them.http://www.breitbart.com/print.php?id=D8ES34L00&show_article=1

A commenter asks: Where in the Constitution is the right of a married woman to buy c-o-n-t-r-a-c-e-p-t-i-v-e-s?

[T]he full scope of the liberty guaranteed by the Due Process Clause cannot be found in or limited by the precise terms of the specific guarantees elsewhere provided in the Constitution. This "liberty" is not a series of isolated points pricked out in terms of the taking of property; the freedom of speech, press, and religion; the right to keep and bear arms; the freedom from unreasonable searches and seizures; and so on. It is a rational continuum which, broadly speaking, includes a freedom from all substantial arbitrary impositions and purposeless restraints - J. M. Harlan II

OK. Thanks Ann and Simon for the spanking over the "Warren Court" when I should have said the "Burger court" and re-stated the argument.

Ann asked me:Do you think there is no right of privacy in the Constitution? If you do, you are not in agreement with Chief Justice Roberts and Justice Alito, both of whom affirmed the existence of that right in their confirmation hearings.

I first want to know if she believes that Roberts and Alito believe that the right to privacy is found in the same place and means the same thing as Ann thinks it means.

I doubt it. Because I don't knopw anyone who believes - including Ann - that Roberts and Alito would find Roe v Wade to have been decided correctly. I believe - and hope - that when the next opportunity to actually overturn Roe arrives, that Roberts and Alito will vote to do so. All while holding that the Constitution hold a right to privacy.

former law student said... "One thing for sure: This Calabresi is no Guido, my friends."

On that, everyone agrees. On the import - that is, which is not of the stature of the other - we must agree to disagree.

Bringing up Scalia's trip with Cheney and comparing it with Palin's remarks about Stevens would make a lot of sense if Scalia had to run for office. Since he doesn't, the comparison is inapt and somewhat vapid. As to the suggestion that the court sides with employers because it lacks empathy with the workers, that too is insubstantial - the best case you can cite for it, from past experience with you, is Ledbetter, and quite frankly, your interpretation of the statute at issue there (and that of the dissenters) is beyond silly. It would still be silly even if you had all the empathy in the world for the victim.

Lastly, the quote from Harlan is nice, but I can quote Black's dissent in Griswold which is at least as rhetorically succinct and powerful, and which prevails over Harlan's opinion by virtue of being right.

with the Most said... "OK. Thanks Ann and Simon for the spanking over the 'Warren Court' when I should have said the 'Burger court' and re-stated the argument."

A very light spanking, to be sure. ;)

"I believe - and hope - that when the next opportunity to actually overturn Roe arrives, that Roberts and Alito will vote to do so. All while holding that the Constitution hold a right to privacy."

That's the elephant in the room when the so-called "right to privacy" is under discussion. It doesn't follow that she who believes in a Constitutional right to privacy must also believe in a Constitutional right to abortion.

It doesn't follow that she who believes in a Constitutional right to privacy must also believe in a Constitutional right to abortion.

That's exactly right, in my opinion. After all, the courts haven't held that this "right to privacy" gives me the right to murder someone in my bedroom. Why should it give me the right to murder someone in a doctor's office? One could argue that killing a human fetus isn't murder, and I'd agree -- but that's an entirely different debate, and "privacy" has nothing whatsoever to do with it.

Since we are having a rational discussion here without harsh invective, can one of you who is a thoughtful pro-choice type please tell me if you believe that a fetus of say 8 months gestational age is not a person with constitutional rights. If you believe that it is not a person then what basis do you have for that conclusion. If you believe it is a person, then how is it that the mother's right to liberty trumps the child's right to life? I don't know all the legalese, but it just seems like an absurdity to me on the face of it. I think reasonable people can disagree about when personhood begins, but it seems like temporarily limiting one citizen's liberty in a particular area in order to preserve another citizen's life is the right thing to do.